Bulwark Takes - The Trump Administration Is Close to Sparking a Legit Five-Alarm Constitutional Crisis. Here’s Why

Episode Date: March 18, 2025

Sam Stein is joined by Ryan Goodman who breaks down the DOJ’s legal arguments and the controversy surrounding deportation orders under the Alien Enemies Act, judicial defiance, and presidential powers.

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Fierce. This has been your Wayfair style tip to keep those interiors superior. Hey guys, it's me, Sam Stein, managing editor at Bulwark. I'm joined by Ryan Goodman, as always, of Just Security. We are here to talk about, I mean, how do you want to even phrase it? We are nearing a constitutional crisis. We've talked about this a couple times, but this one feels a little bit more immediate than the last ones. As always, do subscribe to the feed so we can get content like this. Ryan, we're speaking here.

It's Monday night, 945. There's just been a hearing over the administration's use of the aliens enemies act uh you know centuries-old authority for wartime that's only been used i think four times in our nation's history um what prompted this is that uh they were told to stop deportations of suspected venezuelan gang members to el salvador They didn't. They claim they were in international airspace and that the judge's restraining order was verbal before it was written and they didn't have time, yada, yada, yada. They're claiming they haven't violated law or the court order, I should say. But there's some ambiguity there. What did we learn tonight? Sure. So tonight we learned, at least in the courtroom,

the DOJ attorneys are asserting that they complied with the order. Okay. Orders. And they've got a convoluted theory. So we also learned my best understanding of the convoluted theory as to why they were not in violation of the order. And the most difficult challenge they have is that there's a verbal order that the judge gave on Saturday night around 6.45 p.m., which is turn back the planes.

Right. And then he follows it up about 45 minutes later with a written order that says nobody shall be removed under the proclamation of the in an enemy's act their problem is they've got these ideas about why the written order said something or the other but a real problem is why did they not turn back the planes after the verbal order what is their explanation here it is okay we laugh because we can't do anything else but good yeah so i'm gonna i'm gonna channel the best explanation i think this person may be slightly better than they've put it but their point is there are two planes that are up in the air when the judge's order comes through the verbal order the plans are right and it was made very clear in the hearing that night that the order only pertained to one legal authority

to get people out of the United States and into El Salvador, and that's the Alien Enemies Act. Okay. And it's explicitly said by the Justice Department lawyer at the very end of the hearing, Judge, can you just make clear if we have another basis for removing people we can still do that right and the judge turns the aclu attorney they say right judge turns back and says that's correct my order just says you can't remove them under the alien enemies act because it doesn't apply you don't you don't have this authority so here's the argument if they're in midair and they are in international airspace, then there is a separate new authority that kicks in.

And that separate new authority, yeah. So once you pass a line, a geographic line or your international airspace, suddenly a new law, you're under the jurisdiction of a new law or operating with that as a legal basis. It's changed mid mid mid deportation yeah and the new authority is and this is the other part that's just um extraordinarily aggressive that it's the just inherent article two powers of the president that the president has inherent powers under article two if it's operating abroad so not on u.s territory dealing with say terrorists, but one would have to say suspected or alleged to be, and transferring them through diplomatic channels to another country. If that's the situation, then the president has inherent Article II power to do so. So now they're midair, and that's why their distinction is, see that?

They were in international airspace. If they were still in U.S. territory, the Article II authority doesn't kick in. So the rest of the trip is because they had an alternative legal authority to do so. That's the one piece as to why, after the verbal instruction to turn back the flights. And they don't have to produce any sort of contemporaneous evidence that suddenly, once they cross into international airspace, the lawyer said, ah, we're no longer operating under the Alien Enemies Act. We're now operating under Article 2 authority. They can just assume that that's what they were doing. I would love for the

judge to ask them that very question. I would love for him to say, when was the determination made by the lawyers? I mean, obviously, as you and I, if we were taking truth serum, it was a post hoc determination. They were called to the court, and they said, oh shit, we need a justification for why we didn't turn the planes around. Let's go with the Article 2 authority. But wouldn't the judge say, no, I need to see when your determination was actually made? Yeah. So if it went down that road, it's strange to me that judges often don't ask that question.

Like, did you have the authority beforehand or is this an authority that lawyers came up afterwards but i completely agree with you and it's consistent with the axios reporting which is that they just said damn the damn the judges we're gonna the judge we're just gonna go ahead and uh continue on to take these people in el salvador what was judges uh i want to make sure i'm pronouncing his name correctly borsberg uh boseberg boseberg okay what was uh boseberg's temperament as they um offered this rationalization so he um was it seemed uh quite impatient and kind of came to kept his temper was at one point a little bit more outspoken but he also said like it's i mean all the things that they were saying to him were things that are generally never said in a courtroom. Right.

So it really was an affront to the judicial system because the other pieces that they were saying is, for example, he said, okay, what was your legal justification for, like, the third flight that left after my written order? Right. And they said, we can't tell you that. Citing what? Exactly. And he says, citing what? He says says citing what he says citing what like what's your legal authority and he says i can't tell you that and he said and there was other questions like that he said you came into the courtroom today and you can't even tell me why you can't tell but are they just saying well it's the national security interests and we just can't get into it yeah yeah so actually at one point the doj lawyer says national security

but that's like it's not a reason like are you invoking the state's right it's doctrine or something else they didn't do that they just were vague totally vague in which he actually said come back tomorrow by noon and tell me what the authority is as to why because also the lawyer i think the lawyering on the justice department's side is so bad it's a question of like malevolence versus incompetence right because um yeah well they fired half the people or demoted them so yeah exactly yeah um what is let's let's step back for a second um talk a little bit about the initial decision to invoke the aliens enemies act and the significance of that yeah so i think this is really important uh because that really goes to

the merits of what they're doing um and the kinds of power that they're assuming, especially because the White House, for lack of a better word, propaganda machinery is trying to say part of the reason that the White House and the government's acting this way is because of this wayward, lawless judge. That is the furthest from the truth that is an upside down world uh judge boberg is the chief judge he's highly respected highly respected and what he is doing is straight down the middle the extraordinary thing is what they did with the alien enemies act the alien enemies acts is 1789 statute that is principally for wartime situation right and only against an adversary that is a foreign government. And lo and behold, on Friday night, the president secretly signs the proclamation and then publicizes it on Saturday. And the proclamation says things like that the Venezuelan gang is in fact a foreign government, like things like that.

It's just, it's that absurd. And their court filings also say that as well. They're like, oh, the second theory you have is that the Venezuelan gang is itself a foreign government or it's acting at the direction of the Maduro regime and that the regime is like a hybrid criminal gang government. And that's an absurdity. There's also no war or invasion.

Well, they've been calling it an invasion, right? I mean, they're using all this terminology to dress it up as a war. We've been invaded. These are gang members, you know, so on and so forth. They spent today, they being the administration, depending on your vantage point, either defying or downplaying the judge's decision, mocking the idea that he would have jurisdiction or have any power to determine administration policy in this domain, and also weirdly, in a way, kind of making sure to couch that by saying we, of course, are not defying a court order.

How do you read? And then i should add one other thing uh as i read it um in the afternoon's hearing they tried to get the judge removed from the case or petitioned to get him thrown off the case um how do you read uh the administration's actions today uh okay i think they're trying to seriously delegitimize the courts that's what they're trying to do and And the judge, like I said, has a sterling reputation. I was on CNN tonight, and I was with one of the other panelists, was the author of the Axios report. And he said something on our panel. Is that Mark? Yeah. Our old friend, Mark Caputo. Yes, go ahead. Yeah. And he said, you know, the administration, they want they feel as though the media is not paying enough attention to the judge because he was appointed by Obama. It's like, what? Meaning what? That's absolutely meaningless. And the idea that they would get him removed is inconceivable. That will never happen. He's not doing anything wrong. So I think it's just to play the judges to play. But I think it's actually more than that. I think it's strangely to play the public. Right. And they're not playing the judges. I think they're actually really aggravating the

heck out of the judges. I think they will. The judges are actually going to be deeply concerned about this being either contempt or very close to it, very mischievous in so many ways. The two planes take off when Judge Boasberg goes on a break in the hearing for the government official to come back and report back, and that's when the flights take off. So even if it wasn't sheer criminal contempt or contempt of court, that's not the way that the executive board should be handling it. Right, it was playing fairly fast and loose with the rules.

But let me just – I'm just going to throw something at you, and you can tell me how crazy it sounds. Should we be at all even a modicum of relief at seeing them simultaneously supplement all these braggadocious declarations by saying we are not defying the court order? Because in theory – I mean, Tom Homan aside, put Tom Homan aside for a second. In theory, you can make the case that they could just say, you know what, fuck the court, right? Like, seriously, we don't believe he has any jurisdiction here. We did, we definitely took the planes and ran with them. We don't believe that.

But they were very conscious of saying, we're not defying the court order here. Now, maybe this is just temporary, but I don't know. Is there something we can draw from that? Oh, yes. I completely agree with that. I think that to me, exactly as you described it, the red line of a constitutional crisis is the Justice Department and the administration standing up and saying exactly what you said. Yes, that's your court order. You come and enforce it because we're not going to comply with it. And that's not what they're saying there's all although tom homan although tom homan basically sort of said it but putting that aside yeah exactly he said it and uh there's a stephen miller statement in the last um 24 hours as well it sounds like he's saying it and that but they're also saying it on Fox News, maybe that's red meat or whatnot, or they're preparing the ground for when they do do that.

But in court, I do take some solace in that they are trying to come up with arguments, even if they are somewhat convoluted or very convoluted, to say we are in compliance. There's one thing that I should maybe just add where I'm keeping my eye on it. We'll see how it plays out in the next 24 hours or so. It's the third plane. So the problem is that there's a third plane that takes off from the United States, from Texas, after Judge Boasberg's written order. Right. And the big question is who is on that plane and by what legal authority are they claiming to be able to do that? Are they suggesting that Trende Aragob gang members are not on that plane and that that has nothing to do with the Aliens Enemies Act?

So they're not being clear. What they are saying is that the people on that plane are not being removed under the Alien Enemies Act. So I've got a charitable, innocent explanation, and I've got a nefarious one. And that's what I think will actually define whether or not this is a constitutional crisis of a sort. The charitable one is on the plane are members of the Venezuelan TDA gang, and they have final removal orders. And normal immigration procedures. Gotcha. Yeah. And in fact, they've already yeah and in

fact they've gone through the process they have had their day in court or if you want to call it as opposed to the first two planes where it's just straight up we swept these people up they haven't been yes for an immigration judge and we just have these wartime authorities now i got you yeah exactly okay and in fact that is what the government attorney did ask judge brosberg right at the end of the hearing on Saturday night. Can we remove those kinds of people? And he said, yes. There's your innocent explanation. The nefarious one is, no, they're the same people as the first two flights. And they're claiming Article two has enormous authority, which would be anathema to the entire Constitution.

Just to give a sense of it, it means that the president can get away with things. Even if the courts order him not to, the president can decide whoever he or she wants to remove from the country and deem them to be a members of these gangs. With no due process. With no, no due process. Cause that's the alien enemies act,

but it's also, this is the article two version of the alien enemies act. It's like article two power did not give them any process. And there's a statute that actually governs the removal of designated terrorist organization members. And he's going over the statute. So that's the very bad one. And we'll see, because that's what they're supposed to tell the judge tomorrow.

Two questions. One short, one long, a short one. Did the government agree to stop with the deportations under the Alien Enemies Act while the current legal process is playing out? Yes. We could see more planes, they'll just say it's under a different authority.

Right, okay, fair enough. Good point. It seems like there's so much action, there is so much action judicially, but very little of it seems to be getting up to the Supreme Court, at least as I read it. And this one seems pretty important. Like, you know, we're at a pressure point right here. Why is so little of it making its way to the Supreme Court?

Or is this just sort of the normal, the more normal process? And should the Supreme Court? Is it just sort of the normal process? And should the Supreme Court be intervening in your estimation more aggressively or at least providing some guidance and judgment? Because that's ultimately where a lot of the stuff is going to get resolved. Yeah. I mean, I think it's actually okay that it's percolating its way up and so the Supreme Court can see how the other judges react. I'm also quite worried about the Supreme Court because I think there are at least three justices that are just in the bag for President Trump, no matter how anti-democratic his policies are. Who are your three? I know the two.

So I've got Alito and Thomas, and my third is Gorsuch. I think something's happening. You think he's in the bag? He seems to come out. He's had some unorthodox decisions, but okay. Yeah, yeah. Okay. But in some of these, I don't think so.

In some of them, I actually would prefer to go to the court more quickly so that we could just get it resolved. Some of these in particular, like the contempt piece of this, or the idea that a president could defy court orders in article two, no way. But I do think it's great that we've had across the country, district court judges and courts of appeals on, for example, birthright citizenship come out uniformly in one direction, because that's actually a better posture going to go into. Right. They see the breadth of the opposition as opposed to just one district judge. And then you have to weigh on that. I got that. Yes, and I do think this case might be one of them that's on kind of a speed track. Yeah. And it's already expedited proceedings before the Court of Appeals in D.C.

Same thing might happen. I think this one could really fast-track to the Supreme Court. Yeah, that would make sense. All right, well, we'll be watching. All right, Ryan, we usually do this. Where are you at 1 to 10? Where am I at 1 to 10? Yeah.

How about if I'm either at 6 or 8, depending on the third flight? You were at a 7.5 for lesser things, my man. You got to be it right there. All right, we'll see what happens with the third flight. We'll check back with you. Ryan Goodman of Just Security. Thanks a bunch. Really appreciate it.

Take care, man. Thank you.